By Ruth Marcus
Independent counsel Kenneth W. Starr is rethinking plans to make a complicated and time-consuming appeals court argument for a private law client in May, the same month he will be trying to finish his report to Congress on the investigation of President Clinton.
"No final decision has yet been reached about whether Ken will argue the matter," said his partner, Jay Lefkowitz. "It's a very important matter and it's something I know he is discussing with his client."
Starr had been planning to appear before the 4th U.S. Circuit Court of Appeals in Richmond on May 5 in an intricate dispute between the Meineke Discount Muffler Shops and its franchisees, who argue that the muffler company defrauded them of millions of dollars that were supposed to go for advertising. Starr is representing Meineke and asking the appeals court to overturn a nearly $400 million judgment against it.
But the argument comes just as Starr and his staff in the independent counsel's office are fighting the clock to prepare a report for Congress on their investigation of Clinton in the Monica S. Lewinsky matter. Sources close to the probe said Starr's goal is to complete that report by the end of May.
Until this week, Starr seemed intent on doing the argument. Charles J. Cooper, the lawyer for the franchise owners opposing Meineke and a longtime friend of Starr's from their days in the Reagan Justice Department, said yesterday he will devote about 100 hours to preparing for the argument. He said he had spoken with Starr in the last week and "Ken made clear to me that he intended to argue the case."
Starr's private legal work he has continued to maintain his law practice at the firm of Kirkland & Ellis and has earned more than $1 million annually is permitted by the independent counsel statute. But the extent of his practice and the nature of his clients have been subjects of controversy throughout Starr's 3¾-year tenure as a special prosecutor, and the White House has seized on the Meineke case as the latest opening to attack Starr.
Two senior aides, Rahm Emanuel and Paul Begala, raised the issue on the Sunday talk shows, arguing that Starr had no standing to accuse the White House of trying to delay matters when he has been occupied with outside legal work. "I understand that he thinks he's unaccountable and that the taxpayers are able to pay him full time for part-time performance, but the fact of the matter is Ken Starr took three years to conclude [White House deputy counsel] Vince Foster committed suicide and he's saying everyone else is slow-walking that's chutzpah," Emanuel said.
Starr's defenders pointed out that he has given up arguing several important cases for his law firm, including one before the Supreme Court, because of his independent counsel duties. And they say that Starr manages to juggle those dual roles in part because, as an appellate litigator, he can prepare for those cases on airplane rides or in hotel rooms.
In addition, they said, Starr works prodigious hours. "He probably works an average 14 to 16 hours a day," said deputy independent counsel Jackie Bennett. Since the allegations involving Lewinsky arose, Bennett said, "he's been in the office virtually every single day . . . and that includes weekends."
Some independent observers questioned whether it would be appropriate for Starr to argue the Meineke case while he is also occupied with a matter that could determine the future course of Clinton's presidency.
"He's fully permitted to do it and I think it's a really bad idea, particularly at this stage," said St. John's University law professor John Q. Barrett, a former prosecutor for Iran-contra independent counsel Lawrence E. Walsh. "It creates an issue for people who want to criticize him. It creates an appearance of less than vigorous pursuit. . . . The appearance he wants is full-time, single-minded public business, and clearly he sees it differently."
Cooper, his opponent in the Meineke case, said: "I honestly think that the feature of the independent counsel statute . . . that permits an independent counsel to maintain a private law practice is a good feature. Whether or not in any particular case it's a good idea to make use of that feature just depends on the circumstances, and I think obviously Ken has an enormously important task to complete as promptly as he can. Beyond that, I just don't want to get into trying to render a judgment on Ken's decision."
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